Emsley, Rachel
`
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Emsley, Rachel
`Wednesday, June 8, 2016 2:57 PM
`Lori Gordon
`Rob Sokohl; Arner, Erika; Goldberg, Joshua; Rodkey, Kevin; Trading-Tech-CBM; 'tt-patent-
`cbm@tradingtechnologies.com'; gannon@mbhb.com; sigmond@mbhb.com; Richard M.
`Bemben; Adam Kessel (Kessel@fr.com); John Phillips (phillips@fr.com); Rodkey, Kevin
`RE: Availability for call with the Board (if requested by TT)
`
`Counsel,
`
`
`Thank you for the meet-and-confer yesterday and the additional discussion last evening with
`Mr. Borsand. As we all noted, we did not reach agreement, and therefore TT will bring this
`discovery issue to the Board’s attention and initiate a call.
`
`
`You asked us to inform you of the specific relief that we will request from the Board. We intend
`to ask the Board for discovery under Routine and Additional Discovery. You also asked for
`further detail about what in the documents is inconsistent with Petitioners’ PTAB positions.
`Upon further reflection and review of our communications, we believe that Steve’s email
`provides a specific description of why the documents are inconsistent with Petitioners’ positions
`in their petitions. We gave specific bates numbers for a set of documents that TT spent
`significant time locating by reading through many more documents. It is untrue that we are
`leaving Petitioners’ to “guess” what TT’s position is. As you pointed out, many of the
`documents relate to TS’s Matrix product, but that does not make them any less “inconsistent”
`and certainly does not make them “irrelevant.” Steve's prior email provided the following clear
`example:
`
`
`TS0111352 appears to be part of a manual describing TS's Matrix product (its first
`commercial embodiment of the claimed invention at issue in the CBMs) when it was
`released around 2003: "The Matrix window provides users with an exciting new view of
`the market including an innovative graphical display of market depth and trade activity
`for a given instrument along with lightning fast order execution with its one-click trading
`capability. This combination allows for unprecedented market feel and efficiency for the
`frequent trader." Many of the other documents on the attached list contain equally, if not
`more relevant, statements that contradict TS’s obviousness positions and
`characterizations of TT’s inventions. For example, some documents provide similar
`praise, discuss extensive usage of TS’s trading GUI that implements the claimed
`invention, reflect requests by customers to expand use of the invention to other platforms,
`etc.
`
`
`
`Last night, we understand that Steve pointed to TS0107054 and explained how this early
`requirements document for TS's Matrix heaps praise on the Matrix GUI describing the claimed
`features in glowing terms and actually comparing it to and describing its advantages over the
`conventional prior art screens. The document contradicts Petitioners’ position that the claimed
`1
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`Page 1 of 4
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`TRADING TECH EXHIBIT 2400
`IBG ET AL. v. TRADING TECH
`CBM2015-00182
`
`

`
`GUI features were routine and conventional in the late 1990s, let alone 2003. Petitioners’
`position that such a document is "irrelevant" and that is not contrary in any way to their
`positions is plainly incorrect. Such documents are the type that any court would find most
`relevant, and are the type that lawyers on either side would flag as problematic or as excellent
`for their positions.
`
`Nonetheless, to the extent that Petitioners require further examples, we note the following,
`which reflects our understanding of the documents from litigation counsel:
`
`TS0002266, TS0002270, TS001132, TS1452693, TS1527002, TS1244458 also praise the
`claimed features. Multiple documents reflect requests by customers to have TS expand the use
`of the Matrix GUI to other platforms, such as ipads. E.g., TS1245173; TS1247248; TS1252581;
`TS1254247; TS1253260; TS12516138; TS1256406; TS1257878; TS1258091, TS1262147;
`TS1264269; TS1269846; TS1269897; TS1269993; TS1270054; TS1272177.
`Other documents measure the use of different trading GUIs and shows significance of
`the Matrix GUI to TS, which embodies the claimed features. TS1261405; TS1268720;
`TS1274603-604; TS153387; TS1533975; TS1533977.
`
`Some documents talk about the technology being a GUI used for data entry, not as a business
`practice of trading or viewing market information. E.g., TS1482217.
`
`Many documents are plainly relevant to non-obviousness and secondary considerations. For
`example, documents describe enhancements to the Matrix that relate to claimed features (in
`either independent or dependent claims) and which occurred much later than TT's invention
`date (e.g., 2007 (auto center), 2013, 2015). E.g., TS0005734 and TS1525746. Several
`documents show various features originating from customer complaints or feedback (as
`opposed to being an “obvious” feature to those designing the Matrix in the first place). E.g.,
`TS0107044; TS0107076 (relating to TT's 055 auto re-centering patent); TS 0107079 (relating to
`TT's '556 P&L patent). Several documents show a development history that contradicts
`Petitioner’s position that the claimed GUI features were obvious in 1999 because they show that
`prior to the Matrix introduction in 2003, TS had conventional screens. E.g., TS0005734 and
`TS1525746. Other documents relate to copying (e.g., TS1528404 and TS 1547001, 005 (shows
`indirect copying)) and some documents show that TS regular monitors competitors including
`ladder (the claimed invention) functionality (e.g., TS1528470; TS1528462; TS1528489;
`TS1528491; TS1528565; TS1528568; TS1528571; TS1528799; TS1528813; TS1528827;
`TS1529254; TS1531456) and several documents show that TS was regularly monitoring news
`with respect to TT (e.g., TS1234823; TS1528395; TS1529064; TS1529945; TS1531456;
`TS1531463; TS1532722).
`
`Many of the documents make clear that additional highly relevant documents exist, but TS has
`withheld documents referencing customers. TS0083544 shows that TS gets new feature ideas
`from its customers and lists some from 2012. No such document has been produced yet from
`2003-2004 and this particular document appears to be redacted with many blank pages at the
`end. TS0022413, 0025391, 0028765, 0047283 and 0029696 show TS has forms for keeping
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`Page 2 of 4
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`

`
`track of pertinent information and such forms have not been produced for the Matrix window.
`The documents include example support tickets that we now know exist and will reflect
`customer feedback for the Matrix. E.g., TS1296799.
`
`We will also seek routine discovery and, if needed, authorization for a motion for additional
`discovery for the documents as well as the deposition testimony. To be clear, Patent Owner will
`seek relief from the Board to have the following discovery produced in the PTAB:
`
`
` The documents listed in the attachment to Steve’s email of 6/3/16 (TT may be
`supplementing that list shortly based on more recently produced documents).
` Transcripts of the TS and IB depositions scheduled on June 8, 9 and 13.
` Documents already collected, but withheld in the District Court because they contain
`customer information.
`
`
`If Petitioners require further protection than the default protective order provides in the PTAB,
`they should propose an appropriate order.
`
`
`We understand that Rob and Lori are available Thursday morning, but that for Adam Kessel to
`join, we would need to coordinate a break in the district court depositions. We will accordingly
`ask the Board for a time between 11:00-1 (eastern) on Thursday for the call, which should allow
`the call to occur during a lunch break.
`
`
`Thanks,
`Rachel
`
`  
`
`From: Emsley, Rachel
`Sent: Wednesday, June 8, 2016 2:49 PM
`To: 'Lori Gordon'
`Cc: Rob Sokohl; Arner, Erika; Goldberg, Joshua; Rodkey, Kevin; Trading-Tech-CBM; 'tt-patent-
`cbm@tradingtechnologies.com'; gannon@mbhb.com; sigmond@mbhb.com; Richard M. Bemben; Adam Kessel
`(Kessel@fr.com); John Phillips (phillips@fr.com); Rodkey, Kevin
`Subject: RE: Availability for call with the Board (if requested by TT)
` 
`Lori,  
` 
`Can you extend us the courtesy of another 10 minutes?  I’ve been having a lot of trouble getting a hold of Steve.  He’s 
`just now being able to get on the phone. 
` 
`Thanks, 
`Rachel 
` 
`From: Lori Gordon [mailto:LGORDON@skgf.com]
`Sent: Wednesday, June 8, 2016 2:21 PM
`To: Emsley, Rachel
`Cc: Rob Sokohl; Arner, Erika; Goldberg, Joshua; Rodkey, Kevin; Trading-Tech-CBM; 'tt-patent-
`cbm@tradingtechnologies.com'; gannon@mbhb.com; sigmond@mbhb.com; Richard M. Bemben; Adam Kessel
`
`3
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`Page 3 of 4
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`

`
`(Kessel@fr.com); John Phillips (phillips@fr.com); Emsley, Rachel; Rodkey, Kevin
`Subject: Availability for call with the Board (if requested by TT)
` 
`Rachel – 
` 
`As we indicated on our various meet and confers yesterday, Petitioners require at least 24 hours after receiving TT's 
`requested relief in order to prepare for a call with the Board.  We have yet to receive an email articulating the points TT 
`intends to raise on a call with the Board. Therefore, the times we provided for tomorrow are no longer an option. 
` 
`Please let us know if you still intend to approach the Board for relief and we will provide additional availability. 
` 
`Regards‐ 
`Lori 
` 
`
` 
`
` 
`
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`
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